11 November 2011

Adam Tomkins: Unionist stooge?

Now it is Adam Tomkins' turn. The University of Glasgow public law professor makes headlines in today's Heraldand Scotsman, echoing Aidan O'Neill QC's argument of last week that under its current powers, Holyrood's referendum on Scottish independence could be - and they argue, probably successfully - challenged in the courts. For regular visitors to this blog, despite the calumny and dismay of the newspaper headlines, Professor Tomkins argument should come as no surprise. The Scotsman invite nationalists not to deride Tomkins as a "Unionist stooge". There are a number of very good reasons not to do so, and to engage with the arguments he actually makes. However, from various conservations about this on Twitter, I'm left with a general sense that folk are uncertain and unclear about just what O'Neill and Tomkins' are actually arguing, and why. Better to understand their case, I thought it would be handy to generate a lightweight(ish!) account of the potential legal controversy surrounding the independence referendum, and to answer a few of the familiar objections many of you have brought up. This is it.

Q: So, the Scottish Government say they are confident that the referendum Act would be within Holyrood's powers. How would we tell, in general terms, if an Act is within what you call the parliament's "legislative competence"?

Holyrood is an institution whose powers are framed by statute - the Scotland Act 1998. There are a number of different ways in which Holyrood's capacity to legislate as it sees fit is limited. These are laid out in section 29 of the Scotland Act, including compliance with European Union law and the European Convention on Human Rights. For the referendum, however, it is neither of these bodies of norms that is the problem. It is the concept of "reserved matters".

The general structure of that Act is to devolve all of the powers which are not specifically reserved. Matters reserved to Westminster are elaborated in the Act's fifth schedule. Any Bill passed by Holyrood which is determined to "relate to a reserved matter" will fall outwith the parliament's legislative competence. Simply put, although it may look like an Act, and have been passed by Holyrood with the usual stately legislative air, if a court decides a piece of Holyrood's legislation "relates to a reserved matter", they would disapply and strike down the law as beyond the parliament's powers to command.

Q: So what does "relates to a reserved matter" mean?

It is difficult to say with absolute clarity, as we are still in the comparatively early phase of devolution litigation. As indicated, the reserved matters themselves are enumerated in Schedule 5. As to the "relates" part, the Scotland Act itself requires courts, determining whether an Act of Holyrood "relates to an reserved matter", to consider the legislation's "effect in all the circumstances" (s29(3)). In their judgment in the 2010 case of Martin & Miller v. H.M. Advocate, the majority in a divided UK Supreme Courtelaborated this idea, holding that Holyrood Acts must be examined based on their "purpose", using legislative history, policy anddebates in parliament to discern that "purpose", and thus, whether it "relates to a reserved matter".

Q: But Holyrood talks about reserved matters often, even voting on them in the chamber. Take the Iraq War, for example. That was "reserved" but MSPs voted on it, so surely a referendum should be fine too?

Parliament is certainly not prohibited from talking about and adopting motions touching on reserved matters by the Scotland Act. However, a debate or a motion of the parliament is not legislation and it is legislative competence that poses the difficulty for the SNP's proposed referendum Bill. Section 29 applies to purported laws of the Scottish Parliament, not its debates, so the analogy falls down.

Q: Ah, but surely the independence referendum wouldn't change any laws? Wouldn't it be advisory rather than binding, and thus, not a problem?

Yes, according to our constitutional theory, a referendum would only be advisory, whether or not it was called by Westminster or Holyrood. Neither can arrange binding plebiscites. However, the key difficulty facing Holyrood's Bill isn't about changing the law. It is whether or not the Act authorising the referendum would itself be legally competent.

Q: Well, why could it not be?

Based on our general overview, we know that an Act of the Scottish Parliament will be operating beyond its legal powers if its legislation "relates to a reserved matter" and will be susceptible to being struck down by courts. We also know that the idea of its "relation" should be interpreted in terms of its "effect in all the circumstances", a phrase which at least suggests that courts shouldn't necessarily interpret the idea of "effect" narrowly, for example, by focussing on the advisory nature of the referendum and its limited legal effect vis-a-vis the future of the Union. Following Lord Hope's dicta in Martin and Miller, we can also expect Courts to have regard to the purpose of the legislation.

Q: So apply this to the referendum...

Having read schedule 5 of the Scotland Act 1998, we know that certain aspects of the constitution, specifically, "the Union of the Kingdoms of Scotland and England" (s1(b)), are explicitly reserved to Westminster. Applying our general approach to this particular case, what we have to ask ourselves is: does an Act enabling an independence referendum to be held "relate to a reserved matter"? If the answer is "yes", the referendum would be unlawful. Following Hope, our next question, and the court's next question, is "what is the effect and purpose of the Act"?

Ask any political nationalist, and they will doubtless inform you that the purpose of the referendum is to pave the way for an independent Scotland. It isn't a genteel opinion-seeking exercise, asked out of idling constitutional curiosity. If judges examine Holyrood's Official Report, they will come to understand that clearly enough. Although its effect may not be legally binding, unilaterally creating a sovereign Scottish state, the clear political project advanced by the referendum is the break-up of Britain, and the end of the Union. What the devil would be the point otherwise?

Q: So the referendum is illegal?

Not necessarily, but given the arguments I've outlined, the Scottish Government's claim that it is quite certain that the independence referendum is within Holyrood's powers looks decidedly problematic. Forget the law and the judges. Park your partisan leanings, and consider your common-sense understanding of language. Does an independence referendum relate to the Union? It seems pretty plain to me that it absolutely does.

So, in the absence of clarifying amendments emanating from Westminster, in order for Holyrood's referendum to escape being knocked-flat by judges, we need to find a way to make our understanding of "relating to reserved matters"more rather than less lawyerly. To save the referendum, we have to work up a more arcane reading of the plain language, for simply to engage in a commonsensical construction is to kill the referendum pretty quickly. In this context, the cunning lawyer is the nationalist's friend, not his foe. I've previously suggested a few arguments to this effect.

Q: Does any of this even matter? If we hold our referendum, yon Tory and Labour villains will just have to lump it, won't they? Democracy trumps law, after all.

Unfortunately, despite the popularity of the sentiment, that is not how these things actually work. A referendum, if challenged in court, won't happen until the challenge is resolved. If the case goes all the way to the UK Supreme Court, that could take years. Certainly months. If timing is of the essence, and cunning Eck is laying traps for his foes and plans for his allies, any challenge may blow the whole endeavour off course, or the Westminster government would be forced to intervene. On the plus side, the tactical Nationalist may see some benefits in outraging public dignity by what is certain to be seen as a caviling and illegitimate challenge to Scottish self-determination.

Q: What about the Act of Union? Claims of Right? Lord Cooper on the English constitutional tradition?

Show me the section of the Act of Union or the Claim of Right or paragraph of MacCormick v. Lord Advocate which provides that a future devolved parliament, set up by the parliament created by the Union, shall have untrammelled power to hold referendums. You won't find it. It isn't relevant.

Q: What about O'Neill and Tomkins other points? Are they right that the independence referendum would have to be held across the UK, or at least, held and passed by Westminster to be lawful?

Absolutely not on both counts. The right of self-determination of peoples is enshrined in international law. O'Neill's point about a pan-UK referendum was a fine squib to crack under nationalists, but was not, I think, a terribly plausible piece of analysis or a serious proposal. It is certainly not a "constitutional necessity", if Scotland is to meditate through a referendum on its future.

Secondly, agaisnt Tomkins, there is nothing set in stone about what is and is not reserved to Westminster. The Scotland Bill could be amended to eliminated the legal problems identified by both authors. Alternatively, an order under section 30 of the Scotland Act as is can alter the list of reserved matters in Schedule 5, also eliminating the legal problems. I share Alan Trench's view that Tomkins' solution is "rather baffling". There is categorically no need for Westminster to take over to eliminate these difficulties. It doesn't make one a Unionist stooge to identify the legal problems; one does assume a rather stoogelier aspect when one's solutions have such clear political ramifications in the hungry, Nat-trouncing atmosphere of the House of Commons.

Unfortunately, by failing to address these legal issues directly themselves, the SNP has handed Westminster an ideal opportunity and pretext for taking over the referendum, citing legal problems to justify the adoption of properly political solutions. Had the SNP resolved to fix these using either of the procedures I mention earlier, in a less febrile political atmosphere, Unionists trying to seize the referendum couldn't have cited unlawfulness as a basis for their intervention. Now they can. Whether that is to be lamented, I leave to your judgement. On the other hand, as a nationalist of low animal cunning, you might well think that for Westminster's haughty and domineering intervention might not be the grand gesture of political verve that some seem to imagine it might be, and that it has the real potential to rile the natives...

92 comments
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I'm probably betraying my ignorance by asking this question, LPW, but I was just wondering how Strathclyde Regional Council got away with holding a consultative referendum on the future of the water industry in 1994, given that it unambiguously had no legislative competence on the matter? Was it simply that no-one bothered to challenge it in court?

Given that there is no doubt that Westminster has the legal authority to hold a referendum and very real doubt that Holyrood has the legal authority to hold a referendum, what is wrong with asking Westminster to hold it?

And the wording of the question proposed by Tomkins seems to me to be spot on. It's concise, straightforward, unambiguous and legally correct.

"Unfortunately, by failing to address these legal issues directly themselves, the SNP has handed Westminster an ideal opportunity and pretext for taking over the referendum, citing legal problems to justify the adoption of properly political solutions."

This whole thing seems to be a rather manufactured argument. Firstly, while it's clear that there COULD be a case for Westminster blocking the referendum under the terms of the Scotland Act, they've already explicitly said that they won't. Presumably this is because they know that to do so would be suicidally counter-productive.

Secondly, you note that neither the Claim Of Right nor the MacCormick judgement specifically enshrine the right of the Parliament to hold a referendum, and indeed they don't. But what both provide for is the sovereignty of the Scottish people, and the Act of Union and Scotland Act did nothing to alter that. In other words, we don't need to be GIVEN the right to hold such a referendum, because we've always had it and it was never actually taken away.

And thirdly, you note the UN's standing commitment to self-determination of peoples. That's also something that can't be taken away by local legislation (eg Westminster), and trying to do so could open the UK up to all sorts of problems with its position at the UN.

Obviously, that last point doesn't directly obstruct Westminster taking control of the referendum itself, but let's say the SNP were to boycott the Westminster referendum, leading to an absurdly low turnout, and then bring forward their own. At that point the UK would clearly be in breach of self-determination.

But again, while this is all fascinating technical chat for lawyers, both proper and barrack-room, it's simply not going to happen because in practice it would be beyond insane in a democracy where Scots have voted overwhelmingly for the SNP and against the coalition parties. The Unionists are daft, but they're not THAT daft.

You may remember that I had a friendly tussle with Loveandgarbage over this a few months back. All good fun, but in the final analysis, I don't think either of us was particularly convinced with the arguments of the other.

I can well believe that someone might wish to mount a legal challenge to a referendum bill originating in Holyrood and that such an enterprise might well find favour with the present coalition government. However, I don't think even the most hard line ultra-unionist would be daft enough to think that the person to do it should be the Advocate General.

If the bill ends up in the Supreme Court, by whatever means, then as you say it could well play havoc with the Scottish Government's preferred timetable. However, it would also send an abysmal message to the voters if they were to be told that Holyrood had no right to organise a referendum and that in effect, Scotland had no right to independence, whether that message were to come ultimately from Westminster or the courts.

It would also mean highlighting the fact that Donald Dewar and Lord Sewel had lied to Parliament, or at least spoken out of both sides of their mouths, when they said during the passage of both the 1997 referendum bill and the resulting 1998 Scotland Act that Holyrood would have the right to organise a poll.

The easy thing to do would be to add a paragraph 2 1 (d) under part 1 of Sch5 of the Scotland Act which states that the general reservation of the the Union of the Kingdoms of Scotland and England and the Parliament of the United Kingdom set out in paragraph 1 would not apply to the holding of an independence referendum.

Alternatively, the Scotland Bill could be amended to say that all matters constitutional are henceforth devolved to Scotland, except for everything which isn't - which would necessitate a lengthy list of everything quantifiable which is currently deemed reserved, barring the organisation of a referendum on independence. This would also run the risk of some poor parliamentary clerk ending up forgetting to re-reserve something vital in the process, like the ability of the Lord High Chief muck-a-muck in waiting to determine the colour of the plumage to be sported on the hat of the Governor of St Helena on the Queen's birthday, or suchlike.

Despite the present sabre rattling, I really can't see Westminster treading on the toes of the Scottish Government on this one when it comes to passing the bill. As for any third party legal challenge, the coalition will almost certainly view that as being no great mischief if it eventually materialises.

On a final note, it's interesting that this tussle is over the endless shades of grey as to whether or not there can be an independence referendum organised by Holyrood. Surely the biggest problem faced by a referendum purporting to offer 'more powers' lies in the fact that there's no means by which Holyrood can insist on those powers being devolved, even if people do vote 'yes'?

Quite interesting. One point I am not clear on is what impact the referendum would have on the Union of the Kingdoms of Scotland and England. Maybe that is just clumsy wording in the Scotland Act or maybe I am missing something but the SNP proposes to retain the Union of the Crowns so presumably that means the Union of the “Kingdoms” since Kingdoms belong to the Crown.

The other thing I noticed is that you have not mentioned either the National Conversation or perhaps more interestingly the Commission on Scottish Devolution (Calman Commission). They are slightly different to Parliament passing meaningless resolutions on the Iraq war etc.

No Act was required to set up the Calman Commission, this true, but it was given a very public status and public money, it was able to call witnesses and so on and had access to Scottish Parliament resources in order to gauge opinion about extending the powers of the Scottish Parliament.

People might say that it is not the same thing because its remit was to review devolution with a view to securing the position of Scotland within the United Kingdom but that’s surely irrelevant. If reserved matters are verboten it does not matter if your motivation is to achieve independence, or to keep Scotland in the Union, it's still verboten.

So at the end of the day the referendum could only really be challenged on the basis that the Scottish Parliament has no powers to pass legislation to authorise a referendum – not on the basis that it cannot take action in reserved areas. It can do and has already done so. So it’s a much more narrow question than most people realise I think and is specifically about the question of passing an Act.

Me personally I have no legal knowledge so I have no real opinion but I do think it would be crazy to try and insert something into the Scotland Bill, there is a big risk inherent in that. Also, I have not actually heard any opposition members question the legality of the SG holding a referendum – the questioning has been around the format and questions that would be put and so on. They have not said you cannot do it. So there is no risk in my view of any political attempt to stop the referendum or even to question the legal ability of the SG to hold a referendum and clearly the Government’s legal advisers says they can. If an individual wants to have a go at challenging that no-one can stop them but that prospect shouldn’t be allowed to dominate proceedings.

Indy - it's not that an individual would dominate proceedings. It's just it would have the same affect as a more obvious Unionist intervention without perhaps the same political outrage - it would delay the whole process until it wound up in the Supreme Court.

That's a good point you make about Calman - there was a vote in the Scottish Parliament to fund it against the wishes of the then minority Government.

Another point not really explored is the very convoluted question originally mooted in the National Conversation - to open up negotiations (this looked like a question drafted after legal advice): this seems to be quietly ditched but may be resurrected.

That's an easy one. The Scottish Government calls HM Government as a witness, and says "Why aren't YOU objecting to the referendum bill? After all, if it's illegal it's your job and duty to step in."

HM Government's representative says "Because we're fine with it", and that's pretty much the end of that. The job of the courts is to uphold the laws made by Parliament, and if Parliament isn't objecting then Lord George X, member of the public, doesn't have a case.

Rev Stu - well that wasn't the approach of the Courts in AXA, Adams or Imperial Tobacco. From memory no reference was made to the fact that the British Government had not challenged any of these pieces of legislation as ultra vires.

If an individual did mount a legal challenge that might be the time for the SG to ask the UKG to make an order to authorise the referendum, which would make any challenge invalid, I just don't think that should be considered unless absolutely necessary. And I also think the SG must have quite strong legal advice on the matter which they don't disclose but nonetheless there may be aspects to it that even lawyers have not considered.

I very much have to go with the final line and say an attempt by Westminster (and what's worse a "Tory" government in Westminster)to take over proceedings would rile the natives.

I can't think of a worse line of attack for the Unionists to take. labour appear to be very skittish on the whole affair and are trying to kick it into the long grass - at least from what I can see.

I have said it on other posts by LPW, and I will say it again. It could very well be that Salmond is letting the Unionist camps do the heavy lifting for him. I may be crediting him with too much - but Salmond is a crafty and canny political fighter. His opponents look more and more like school yard bullies.

The suggestion of a Greek referendum (de facto, on THEIR independence), induced near apoplexy in the EU bureaucrats and political leaders. They put a stop to it.This will be mirrored in London. The objective will be to preclude having to deal with a yes to either question. And so to stop ANY referendum taking place.The Scottish people have already, at the polls, expressed a desire to have such a referendum. Same as they did in 1997.The process is in motion.

Denying people a vote in a democracy by giving it the stamp of legality is a threat to the rule of law.

While Peatworrier is a fine chap, and I knw this has exercised him for some time, why do he and loveandgarbage, when challenged on this quaint notion that the people of Scotland are Sovereign, not go step by step why they consider this is not so.

The English version of the Claim of Right DOES make the sovereignty of Parliament an explicit assertion, the Scots version does not and seems to affirm the notion set forth in the Declaration of Arbroath the the People have the power to change their rulers.

In fact, the Treaty of Union has been breached so many times that a wealthy individual could make a good fist of a case for saying it is void and going to court.

Thanks for the patient laying out of your arguments, I hope they help further educate people in these matters.

>>Show me the section of the Act of Union or the Claim of Right or paragraph of MacCormick v. Lord Advocate which provides that a future devolved parliament, set up by the parliament created by the Union, shall have untrammelled power to hold referendums. You won't find it. It isn't relevant.<<

To be fair nothing here states categorically that the peoples expressed desire shall be tramelled by that peculiarly English notion of Parliamentary sovereignty either.

Jannie Wullie

I am increasingly worried about your continued predilection for the setting of barriers aimed at preventing a referendum.

They have breezily asserted from the outset that Holyrood has the power to hold a referendum, a view you don't appear to accept.

Now both Aidan O'Neill and Prof Tomkins, have opined that Holyrood has no such power. I doubt either of them would risk their professional reputations simply to cause trouble for the nats. Their view are authoratative and should be taken seriously.

Perhaps Salmond knows they are right and his assertions to the contrary have been bluff and bluster. Perhaps that's what lay behind his and MacAskill's schoolboy attacks on the Supreme Court, an episode you understandibly seem to have found embarrassing.

The problem is that the SNP's idea is to tell the people what will happen in the event that Scotland seceedes from the union. EU membership, interest rates, currency, that kind of thing. He's going to give us the answers are we're to take them on trust.

The trouble is, if he has been wrong about Holyrood's power to hold a referendum, who other than his committed suporters is going to believe him about anything else?

Ian Davidson is a fundamentalist who dominates the committee he chairs and whose members already agree with him on everything he wants anyway.

The specialist advice for the committee is taken from the same government spook that advised Calman.

There is not the faintest doubt, even among non-SNP commentators, that this committee is implacably biased in the direction of the outcome it wants.

It lacks authority and legitimacy.

And while everything you say in your post is true enough, Tompkins is undoubtedly a stooge of the committee. His paper to the committee is not only not neutrally composed (and headed "Scottish Separation", to boot), it is so querulously rhetorical in parts that it is in fact all too easy to disinter his actual argument. That's because as soon as it reaches the heart of the matter it suddenly switches from the clunking certainty of self-regarding bombast to the timidity of the conditional and the hypothetical.

That's the reason its so easy to spot that he ties himself completely in knots over what's devolved and what's not, and the issue of why there should be a referendum, and who should carry it out.

Having tied himself in knots, his conclusion is not even usable to his political masters. For Cameron to hold the referendum as he advises, the outcome, if it is as the committee intended, would not only not solve the issue for 'a generation' at least, it would be straight back on the political agenda with a vengeance the day afterwards. So even in a politically pragmatic sense his advice is useless.

Tompkins is an academic stooge, and paradoxically for someone that is paid by the taxpayer to use his brain for the public good, a weak-minded stooge at that.

Indeed - and the Westminster turnout last year was 63% so as far as the electorate are concerned it's clearly Westminster that matters.

It seems to me that with good will on both sides it should be possible to kick the bickering into touch and agree on the terms of a referendum. The problem lies entirely with Eck who seems to think that getting less than half the votes on a turnout of 50% - most of those who bothered to vote didn't vote SNP - gives him a mandate to speak for all of Scotland on everything, even Susan bloody Boyle - 'All Scotland is behind you!' (no it isn't - I couldn't are less where Susan sings as long as I don't have to listen).

The sad thing is that Eck showed some astonishing signs of humility after the election - it faded like the mist on Bingham's Pond alas.

Oh, dearie me. It's all the evil Salmond's fault. That's why the UKG has come up with a fair and balanced referendum wording which they've put before Parliament sans any 40% rule or other fix. It's why last year they were so ready to give the people of Scotland the referendum they wanted and only the SNP stood in the way. Right?

*cough*

Denying the people of Scotland the right to a referendum on the part of a Tory/Labour alliance (I don't bother with mentioning the LD who are an irrelevance) would be absolute political suicide for Labour, not to mention radicalise a large section of the Scottish people.

I am sorry LPW but I don't think there is any way that the UKG would let this get to the UKSC. I think they would find a way to stop it rather than face the embarrassment and the political fallout.

"The problem lies entirely with Eck who seems to think that getting less than half the votes on a turnout of 50% - most of those who bothered to vote didn't vote SNP - gives him a mandate to speak for all of Scotland on everything"

That's a silly argument. If he thought he had a mandate to speak for Scotland on everything, he'd be declaring UDI, not holding a referendum to allow the people of Scotland to speak for themselves.

"getting less than half the votes on a turnout of 50% - most of those who bothered to vote didn't vote SNP"

Yaaawwwnnn. That is, of course, also true of pretty much every government of the UK in living memory. The SNP got a bigger vote share (in a four-party system, at that) than even Tony Blair's landslides. So if his mandate isn't legitimate, nobody else's has been for the last 50 years either.

The first principle of the rule of law is that it's the courts who adjudicate, not a blog commenter called Groundkeeper Willie, and not individual legal experts for that matter. If we all knew for a fact that the SNP's very careful choice of wording was not within the law, we wouldn't be having this discussion in the first place.

The SNP Government's intention does not include changing Union of the Kingdoms - emphasise KINGDOMS - but instead the Union of Parliaments. How therefore does S1(b) of Schedule 5 have any excluding effect.

If the referendum bill explicitly states that it excludes issues relating to the Union of the Kingdoms, does that remove the main proposed problem?

Do you have any evidence that the assertion on this matter in the 1689 Claim of Right has been contested and the Scottish people given over their sovereignty to Westminster?

Do you agree that the 1689 Claim of Right remains 'in law' and 'unaltered'?

Do you agree the 1689 Claim of Right is protected for 'all time' by the 1707 Treaty of Union?

Do you agree that as the Declaration of Arbroath was entrenched in Scots Law by the first Parliament of Three Estates in 1328 and that Scots Law retains its independence (an issue the Scottish Law Lords see threatened by the Supreme Court)the the people of Scotland's sovereignty has been protected in Scots Law for over 700 years and was never subsumed by the English practice at Westminster of 'Parliamentary Democracy' - a legal point made by Lord Cooper in his judgement in 1953 and conceded by the Lord Advocate on behalf of HM Government?

The reality is, as Lord Forsyth - Thatcher's Secretary of State for Scotland - argued in the Devolution debates of 1997, if the sovereign Scottish people decide they wish independence and give the Scottish Parliament a mandate to take Scotland to independence then there is nothing Westminster can do to prevent it because the right to self determination trumps any law passed by Westminster.

I would argue that a coach and four can be driven through section 5 of the 1999 Scotland Act because it assumes that Westminster is where Scottish Sovereignty resides where as the reality is the Scottish people lend their sovereignty to the Scottish Parliament in the first instance in line with Scots Law and constitutional practice - this, I believe, is the only legal argument that can support Lord Forsyth's assertion.

There is nothing in the 1707 Treaty of Union that says one side or the other can never disengage from the Treaty. This is specifically covered by the enabling acts agreeing to temporarily suspend the 1707 sittings of both the Scottish and English Parliaments prior to establishing the joint UK Parliament. Both the Scottish and English Parliaments remained in suspended animation until July 1999 when the Scottish Parliament announced itself in resumed session after the temporary suspension of March 1707.

This announcement went unchallenged by Westminster but may yet come hurtling back to bite them along with Calman and any attempts to over ride the Sewel Convention and force the Scotland Act Amendment Bill on the Scottish Parliament.

The reality for the Unionist argument is no matter what they do they are stuck between a rock and a hard place while arguing Westminster would have to rely on the Supreme Court to stop the SNP simply smacks of out and out desperation and from a realisation Westminster has already lost the argument.

To quote Dicken's Mr Bumble, 'If that, sir, is the law; then the law is an ass!'

As you so helpfully pointed out earlier, Holyrood turnouts are lower (and indeed the 1997 turnout was much higher even than recent Westminster elections), so those figures are not directly comparable. You were keen enough to talk about the 1997 vote share when you mistakenly thought Labour got more than 50% - so why the sudden change of heart?

Wullie boy answer the question in law are the people of Scotland sovereign - yes or no?

It is not blabber - if the people of Scotland remain sovereign we can tell Westminster where to get off because the Constitutional Law you are so enamoured with is based on a falsehood, that is section 5 of the 1999 Scotland Act is incompetent in law and should be struck down because the people of Scotland being sovereign means that the UK Parliament as constituted as a parliamentary democracy is at odds with the sovereign Scottish people who elect a representative democracy.

This is not blabber it is the pivot point and as you address such a fundamental right with such contempt, I aver you have little or no defence because if you wish to apply section 5 of the 1999 Scotland Act I consider it is legally appropriate to apply the 1689 Claim of Right to demonstrate the fundamental legal error at the core of the 1999 Scotland Act.

Willie, any kind of 'focus' at all from you would be welcome, given that you continually shift the goalposts when the holes in your argument are pointed out. As far as I can see, no Nat made the specific claim you say was made about the 1997 election in Scotland - the words used were "vote share" (which is about percentages, not raw vote totals) and "Tony Blair's landslides", which includes both 2001 and 2005, and just as important also includes 1997 on a UK-wide basis.

Not at all. But what I do understand - and you apparently don't - is that there's a difference between "vote share of the votes available" and "number of votes cast". Do you now accept that your comparison between the raw number of votes Labour received in 1997 and the raw number of votes the SNP received in 2011 is by your own definition utterly irrelevant to this discussion? If not, why not?

"...There is not the faintest doubt, .... that this committee is implacably biased in the direction of the outcome it wants."

And the SNP is not..??? Of course it is.

Anyway, the Committee is formed in the same way as any Parliamentary committee, in proportion of party loyalty. And it has SNP representation.

"... as soon as it reaches the heart of the matter it suddenly switches from the clunking certainty of self-regarding bombast to the timidity of the conditional and the hypothetical...."

You could be refering to the switch from the SNP's certainty of a one question referendum on "independence" to the SNP's "um err would you like another question..pleae please pretty please... would you, please...we would love you toa add a question to rescue us from our idiotic certainty...PLLllEEeesse.".

Interesting that the committees faults (as you see it) are mirrored by the nats but somehow that's ok by you.

Hilarious. Absolutely nobody anywhere has ever counted "share of the vote" to mean such a thing. It means "share of the votes actually cast", not "share of the number of votes theoretically available". If you can find me a SINGLE media source where a party's "vote share" is expressed as a percentage of the total electorate rather than votes cast, I'd love to see it.

Labour counted the dead as their supporters back in 1979, and it looks like they're still at it.

And just by the by, this is all an entirely academic point. I wasn't talking about Blair's share of the vote *in Scotland*, because that would be meaningless - he wasn't standing in a Scottish election, he was standing in a UK one. And none of his UK election victories saw him get as large a vote share as the SNP did in 2011, even though he was only competing against two main opposition parties rather than three.

Holyrood doesn't have the legal power to hold a referendum on Scotland leaving the Union.

Any attempt to do so will almost certainly be defeated in the courts.

I think that's what LPW has been trying to warn his fellow nats about.

They're either too dim or too obstinate to understand or accept the point.

Instead they haver on about the Scottish people being sovereign and the settled will of the Scottish people reflected in the historic, all conquering landslide election victory in 2011.

When some perspective on the scale of that mandate is suggested, by pointing out that the turnout was only 50%, and that Labour have always polled more votes in Westminster elections than the SNP did for Holyrood, the nats lose the plot.

Nationalism is, in essence, an emotional rather than a rational, perspective. I suppose it shouldn't be a surprise then that so many of its adherents are irrational.

It's pretty clear that Holyrood doesn't have the power to hold a referendum on Scotland leaving the UK and that any attempt to hold a referendum will be struck out by the courts.

The nats have responded by saying that whatever the legal niceties the SNP have a mandate from the Scottish people to hold a referendum.

They cite as proof of this moral right, which outweighs the legal position, the so called landslide election.

The problem is that the so called landslide wasn't particularly impressive in that only half of those entitled to vote actually bothered to do so and the SNP obtained support from fewer Scots than vote for Labour in every Westminster election.

So, we're left with Holyrood having no legal right to hold a referendum and any claim to having a moral right, based on the level of support from the Scottish people, looking rather tenuous.

There's certainly a lot of huffing and puffing going on in this thread, but it isn't coming from me.

1) It's pointed out to you that it's for the courts to decide how to interpret the law, not for you.

You change the subject to the Supreme Court spat.

2) It's pointed out to you that Blair did not, as you claimed, receive "over 50% of the vote in Scotland" in 1997.

You go off on a tangent with a bizarre comparison between the number of raw votes Labour received in 1997, and the number of raw votes the SNP received in 2011, implying there is some sort of relevance to your original claim.

3) It is pointed out to you that there is no such relevance.

You reply by falsely asserting that a Nat had claimed "the SNP got more votes in 2011 than Labour did in 2011".

4) You are called out on this false claim, and asked to supply the relevant quote.

You hurriedly - and understandably - change the subject with another bizarre claim that "vote share", contrary to the well-understood practice of psephologists, actually refers to raw votes, and not to a percentage of the actual votes cast.

5) This misconception is pointed out to you.

You change the subject with a non-specific ramble about "cyber gnats".

Funnily enough, Willie, I was asking a serious question because I wanted to know the answer and thought it might be illuminating. Contrast that to a man who claims to already know the answer to everything, in spite of the embarrassing factual errors he seems to make almost every time he opens his mouth.

"It's better to keep your mouth shut and be thought an idiot than to open it and dispel all doubt."

"I don't think I deserve insults either."

"it's no wonder you are so ignorant."

Thankyou for brightening my day with those three glittering comedy moments. Does someone else want to explain the irony to him, or shall I?

As for "answering my question", five is in a sense an answer to the question "what is two plus two?", but it still has a number of important shortcomings.

"The provision of water and sewerage services was the responsibility of SRC hence they were entitled to hold a referendum on how the provision should be made."

But, inconveniently for your argument, they didn't hold a referendum on those responsibilities. The referendum related a to a piece of Westminster legislation and nothing else. In many ways it was far more unambiguously outside the council's competence than the question the SNP are proposing, which relates specifically to what the Scottish Government should do, ie. should it open negotiations with the UK Government?

Suppose, for the sake of argument, you're right and I'm wrong, it leaves the question, how on earth did SRC get away with it?

Furthermore it raises the question of why the SNP let them get away with it, especially since their request to include a question about the governance of Scotland was refused on the ground that SRC didn't have the authority to ask the question?

I raised one obvious possibility at the start of this thread - that nobody bothered to challenge it. The other possibility of course is that they received legal advice that they could get away with it, just as the SNP have quite possibly received advice that conflicts with the legal opinions you're so determined to treat as indisputable fact.

"Furthermore it raises the question of why the SNP let them get away with it"

Again, there's a very simple answer to that question : they wanted the referendum to take place. In such circumstances, it would have been distinctly odd for them to try to block it.

I don't recall there ever being a suggestion that SRC didn't have the legal authority to hold their referendum.

Compare and contrast that with the present situation where a leading academic lawyer and a leading practising lawyer, not to mention our esteemed host, have made it known that they have no doubt that the referendum is ultra viries and in all probability will be struck down by the courts. The case they outline is detailed and reasoned.

Against that you have your assumption that the SNP might have a legal opinion to the opposite effect though you haven't seen any such opinion and know nothing of its contents.

Any idea that you might actually look at the Scotland Act and try to work out the answer for yourself isn't considered.

It may be a little presumptuous of me, but this thread has gone way off beam. Might I suggest that we now stop feeding the troll?

Point scoring at the end of the day does not change the fact that SNP did in fact win and that a referendum will be held. This is not a matter of opinion or something that can be debated away. What is at hand is the timing of such a referendum. The unionists want it now, because the polls suggest that they could win it. SNP have stated that it will be held towards the end of the current parliament, because they clearly wish to create momentum and support for their preferred option which is of course independence.

In trying to attack the competency of the Scottish parliament to hold a referendum is one of many tactics being employed by the unionist camp. Just read a newspaper, indeed any newspaper to see the other lines of attack - they are incredibly negative, but they all follow a similar pattern: they reinforce the current Unionist narrative that we are "too wee, too poor" etc etc.

The rights and wrongs of it, are all legal toffee in my opinion and tend to distract from the reality of the situation. The referendum will be held.

My position is that the tactics of the Unionists are counter-productive, and may very well end up being the loudest and most effective cheer leaders for the break up of the UK.

"Any idea that you might actually look at the Scotland Act and try to work out the answer for yourself isn't considered."

Why, is that what you did? Well, that certainly explains a lot. I trust you read it with more care than you did the 1997 general election results, or the definition of the term "vote share".

"I know which horse my money will be on."

Please don't bankrupt yourself out of bravado. If the SNP weren't listening to legal advice and taking it seriously, they wouldn't have chosen a referendum question with such care. The truth is that you don't know what the outcome of a legal challenge would be any more than I do. But but all means carry on "huffing and puffing" about your supposed certainties if it makes you any happier.

Well - if the local council elections next year see Labour further degenerate ( I don't suppose that record 'golden handshakes' etc. for retiring Labour councillors and interestingly founded Glasgow firm bosses will impress the good citizens of Glasgow), a range of polls continue to show an increased SNP/Independence support and the unionists blunder on having not quite grasped the changed political ambition of Scotland - will a referendum be needed?

I'm afraid it looks like your efforts are no more than pearls before swine.

What it is to be a prophet in your own land.

You'd get more appreciation if you just stuck to the party line.

I can well understand your misgivings about the authoritarian nature of the SNP government. It's unpleasant enough on its own, but when it's combined with an apparent simple minded acceptance among the membership it's not just unpleasant, it's worrying.

Righty-ho. I have £500 here that says there WILL be a referendum on Scottish independence conducted before June 2016, and that it will be run by the Scottish Government, not the UK Parliament. I post under my own name, and can be easily contacted by clicking on my ID on this post.

when I state that the rights and wrongs of it are just legal toffee - that is exactly what it is. Getting people all riled up and antsy - like yourself. You can argue about it till the cows come home, but it won't change the factthat a referendum will happen.The "who" the "where" and the "why" will be decided by events. Who wins or loses will depend on how the players use the hands they've been dealt. The final say is down to the voter.

Mr Ground-keeper, I'll repeat it once more - legal difficulties regarding the competency of the Scottish government to hold such a referendum will not change the facts on the ground. A referendum will be held, either by the Scottish Government or a pre-emptive referendum posed by the UK government. But the fact remains - the referendum will be held.

Do you understand? This issue has been kicked into high gear largely due to the actions of the Unionist parties. It has a momentum and energy all of its own now.

Legal challenges aside - it will happen. I know I am repeating myself, but I feel I have to as you seem to under the mistaken opinion that it isn't. So let me state it once more for the cheap seats - It is going to happen.

How it turns out - well that's a bridge we'll come to in due course.The endgame will depend on how well or badly the opposing sides performed in persuading the Scottish people on the merits of their particular case. For my penny's worth - The unionist side has shown a considerable lack of tact in their approach that may very well bring about the very thing they don't want. Just as the Tories couldn't stop devolution once the ball started rolling, the Unionist camp may well get flattened.

Then again they may not and the issue will fade into the background only to rise again sometime in the future.

"And I must say I'm impressed with Tomkins proposed wording for the question. It's both concise and precise."

It may be, but Tomkins didn't win a mandate from the Scottish people, so his opinion on the matter is of very little relevance. The SNP's proposed wordings are also precise and concise, and unfortunately for Mr Tomkins and his biased viewpoint, they're the ones who get to decide.

Anonymous the electorate for the referendum will be the same as for Scottish & local government elections.

The SNP does not propose to use the Electoral Commission but to set up a specific body to oversee the referendum.

There has been some comment about this and I was personally quite amused by the Scotsman leader that used this as evidence of the SNP wishing to rig the referendum to get the answer they wanted - as proof of the trustworthiness of the EC they cited the fact that George Reid was one of the commissioners.

I found that quite hilarious, the idea that the presence of a known nationalist and former SNP MSP and MP should be cited by the Scotsman as evidence that the Electoral Commission is impartial. Because, supposing the SNP did agree to use the Electoral Commission, how long would it be before the Scotsman was suggesting that the SNP was wanting to rig the referedum by having one of its ex-members on board? Not long I suggest!

As it is the SNP proposes that the Commission to oversee the referendum should not include any former politicians at all and should also prohibit anyone with any political allegiance.

Rather than trying to wade into the discussion, I'll just pick up a few direct points you've raised. If I missed anything anybody wanted me specifically to address, do give me a prod. Firstly...

James Kelly,

I should begin with the caveat that I haven't investigated the 1994 Water Referendum in any detail, or its putative legal basis. I would say this, however. The powers of Strathclyde Regional Authority definitely aren't structured in the same way as Holyrood's, with reserved/non-reserved matters. Some folk have asked - are you seriously suggesting that Holyrood has less power than a local authority? The short answer would be yes, insofar as it is constrained not to pass any law which "relates to a reserved matter". Moreover, it is hardly a shocking proposition at odds with all understandings of the parliament's powers. Anyone familiar with borrowing powers of local authorities, ans the lack of them for the Scottish Government, knows as much.

Richard Thomson,

Your point about some "more devolution" option on the ballot is well taken. Basically, it is an attempt to use the logic of devolution to kick the UK as a whole into a federal structure, and thus, arguably, a minor part of the country attempting to determine the political shape of the whole.

DrNik,

Interested to hear that you've already encountered potential litigants. I'm not surprised - but it serves as a useful reminder that this isn't the abstract fancy of speculative legalist. The folk are out there with the hunger and resources to challenge any referendum. After the recent splashes in the paper, I dare say a few more will be waking up to the possibility.

James Morton,

The Maximum Eck is clearly a canny customer - no doubt about it - but I find he presents a real problem of interpretation. Credited with wizardly powers in some sections of the press, his acumen seriously risks being overrated and his blunders overinterpreted, being credited as wildly cunning stratagems.

Groundskeeper Willie,

Just for clarity, I should emphasise that my position is that a Holyrood-organised referendum may be within its powers; that very much depends on how a court interprets the idea of "relating to reserved issues". For example, the UK Supreme Court could save a Holyrood-organised referendum by holding that the purpose of the Referendum Act is limited, seeking to canvass the views of the Scottish populace on a subject of public interest. In terms of effects, while a "yes" result would obviously have political effects, it would leave the law undisturbed and thus, cannot be said to "relate" to a reserved matter in a way which renders it invalid. As I laid out above, however, this is at the very least a tricky argument to make and is, I anticipate, the sort of logic the Scottish Government legal service would advance, defending the referendum's competence. Whether you regard this uncertainty as problematic likely depends on whether you are particularly concerned about a length challenge in court - or whether you'd like to see this avoided.

For those reasons Indy, I can't believe that the Scottish Government have received legal advice, telling them their case for the referendum's competence is substantially stronger or more conclusive than loveandgarbage, Aidan O'Neill, Professor Tomkins and myself have been able to discern.

No I didn't mean that the Scottish Government have gone to a firm of lawyers and got legal advice, in the way that an individual could do.

I mean that the draft referendum bill was Crown copyright, it is not an SNP publication, it's a Scottish Government publication written by UK civil servants.

"As far as legislative competence is concerned, a referendum could be held under the authority of an Act of the Scottish Parliament, depending on the precise proposition in the referendum Bill, or any adjustments made to the competence of the Parliament before the Bill is introduced. Legislation for a referendum could also be passed by the United Kingdom Parliament, most likely consulting the Scottish Parliament for its views. The Act could make detailed provision for the holding of a referendum, setting out the question and other arrangements, or could give Scottish or United Kingdom Ministers powers to bring forward secondary legislation with these details at a later date. A further possibility would be to set up a mechanism similar to that in the Government of Wales Act 2006 that would empower the Scottish Parliament and Scottish Government (or the Parliament alone) to call for a referendum at a time of its choosing, rather than relying on Scottish or United Kingdom Ministers to bring forward proposals."

Those are the options which have been set out - if any individual chooses to go to court they are not challenging the SNP, let's be clear about that, they are challenging the view taken by the Scottish Government on advice from their civil servants (who are not devolved of course but still accountable to Whitehall). So they would have to challenge them on their lack of understanding of legislation.

"A further possibility would be to set up a mechanism similar to that in the Government of Wales Act 2006"

Indy - the provision you cite only allowed the Welsh FM to propose a motion in the Assembly recommending that that the Queen make an Order in Council to provide for a referendum to bring in the Acts of the Assembly as provided for under the bill.

If the Assembly voted for this motion by the required margin, it still needed the Westminster SoS to lay a draft of a statutory instrument containing an Order in Council before each House of Parliament within 120 days, or to give notice in writing to the First Minister as to why he was refusing to do so. Basically, all something similar would do is put Westminster in control of both the wording and timing of a referendum, as well as giving the opportunity to insist that it needs something other than a simple majority to pass Holyrood.

If Westminster were to step in to expedite the referendum process, it would be far better to simply add a paragraph to the relevant section of the Scotland Act to make clear that notwithstanding the general Schedule 5 reservation over the Union of the Kingdoms of Scotland and England and the Westminster Parliament, the holding of an independence referendum is not, even if it were before, a reserved matter.

That way, it removes any argument as to the competence of the Scottish Government to hold the poll. It also might serve to win the coalition a bit of political capital in the debate which right now they scarcely deserve.

“I think of him more of a long nosed, elegantly coiffed Afghan pawing through his leather bound library whilst disdainfully inhaling a puddle of Armagnac in an immense crystal snifter. If he can also lift his leg over his shoulder and lick his balls...” ~ Conan the Librarian™

“... the erudite and loquacious Peat Worrier who never knowingly avoids a prolix circumlocution.” ~Love and Garbage

“My initial mind picture was of a scanty bikini'd individual wallowing in a bath tub of peat. However I've since learned to warm to him, and like peat he's slow to draw but quick to heat...” ~Crinkly & Ragged Arsed Philosophers

Definition: "to worry peat" v.

"Peat worrying" is the little known or understood process for the extraction of cultural peat, practised primarily in the Lowlands of Scotland by aspirant urban rustics. Primary implements by means of which successful "worrying" is achieved include the traditional oxter-flaughter but also the sharp-edged kailyard and the innovative skirlie stramasher.